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SMITH v. DICARA

July 20, 1971

William W. SMITH, Plaintiff,
v.
Leo DiCARA, Defendant


Bartels, District Judge.


The opinion of the court was delivered by: BARTELS

BARTELS, District Judge.

On May 7, 1971, the court granted defendant's motion to remand the above-captioned action to the State Supreme Court, Nassau County, in open court, whereupon the Government moved for reargument. After due consideration, the court adheres to its original decision for the reasons set forth below. *fn1"

 This is an action for damages arising out of an alleged defamation of character, which was originally commenced in the New York State Supreme Court, Nassau County, and subsequently removed to this court pursuant to 38 U.S.C. § 4116(c). The complaint, brought by a federal employee, charges that the defendant, a physician in the Department of Medicine and Surgery, examined plaintiff in Northport Hospital, a Veterans' Administration Hospital, after which the defendant issued the following report:

 
"Physically, this patient can do most of his duties, however, I feel that his personal habits preclude steady attendance to his duties. This patient has many of the outward appearances of a heavy user of alcoholic beverages -- I've never known to be in error in matters such as this."

 The examination was in response to an order by plaintiff's superiors in the Post-Office Department, pursuant to the requirements of plaintiff's employment. The applicable statutes are 38 U.S.C. § 4116, 28 U.S.C. § 1346(b) and 28 U.S.C. § 2680(h). The pertinent portion of 38 U.S.C. § 4116 reads:

 
"§ 4116. Defense of certain malpractice and negligence suits
 
(a) The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death allegedly arising from malpractice or negligence of a physician, dentist, nurse, pharmacist, or paramedical * * * or other supporting personnel in furnishing medical care or treatment while in the exercise of his duties in or for the Department of Medicine and Surgery shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or his estate) whose act or omission gave rise to such claim.
 
* * *
 
(c) Upon a certification by the Attorney General that the defendant was acting in the scope of his employment in or for the Department of Medicine and Surgery at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merit that the case so removed is one in which a remedy by suit within the meaning of subsection (a) of this section is not available against the United States, the case shall be remanded to the State court." (Emphasis supplied).

 28 U.S.C. § 1346(b) provides:

 
"* * * the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

 However, 28 U.S.C. § 2680(h) specifically excepts from the jurisdictional grant of § 1346(b):

 
"Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."

 Since the complaint in the instant case failed to make out a claim against the United States under § 1346(b) (Kessler v. General Services Administration, 341 F.2d 275 (2d Cir. 1964); DiSilvestro v. United States, 181 F. Supp. 860 (E.D.N.Y. 1960), cert. denied, 364 U.S. 825, 81 S. Ct. 65, 5 L. Ed. 2d 55 (1960); Teplitsky v. Bureau of Compensation, United States Department of Labor, 288 F. Supp. 310 (S.D.N.Y. 1968), modified on other grounds, 398 F.2d 820 (2d Cir. ...


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